Dr. (Mrs.) Kamlesh Vasudeva vs Dr. (Mrs.) Kamlesh Vasudeva And ...
2010 Latest Caselaw 2247 Del

*    HIGH COURT OF DELHI : NEW DELHI


+    LPA No. 866 of 2004


%                                      Decided on: April 21, 2010


Dr. (Mrs.) Kamlesh Vasudeva
W/o Capt. S. Vasudeva
Owner of Vatika Farm
(Khasra No. 275, 276, 292, 293)
Village - Satbari, Mehrauli
New Delhi.                                        ..... Petitioner

                            Through:   Mr.Ashish Aggarwal, Adv.


                   versus


1.    Municipal Corporation of Delhi
      Through its Commissioner
      Town Hall, Chandni Chowk
      Delhi-110 006.

2.    Union of India
      Through its Secretary
      Ministry of Urban Development
      New Delhi-110 001.                          ..... Respondents

Through: Ms.Maninder Acharya, Adv.

Coram:

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

MADAN B. LOKUR, ACJ (ORAL)

The Appellant is aggrieved by an order dated 6th July, 2004 passed

by a learned Single Judge in WP (C) No. 7859/2004.

2. The Appellant is a bhumidar of land measuring 17 bighas in

Village Satbari, Tehsil Mehrauli, New Delhi. Construction of a farm

house in accordance with the building norms was permissible on the said

land in view of the fact that it falls within the rural area of Delhi.

3. The Appellant accordingly constructed a farm house as a

residential unit after obtaining necessary sanction for this purpose.

During the course of construction, the Appellant made some deviations

but these were found to be compoundable and after charging the

compounding fees, they were regularized. Thereafter, the Appellant

made further construction but without any sanctions. Additionally, the

further construction was found to be non-compoundable.

4. In a different context, a Committee was set up under the

Chairmanship of Professor V.K. Malhotra in respect of some issues

relating to town planning and as a result of its report, the Master Plan for

Delhi was amended and a notification was issued on 23rd July, 1998

increasing the coverage and maximum height permissible for farm

houses. This was followed by a further notification which notified a

levy for regularization of the additional floor area ratio at Rs.450/- per

sq. meter.

5. The Corporation issued public notices from time to time inviting

applications from owners of farm houses for regularizing the excess

construction that they had made on payment of regularization charges.

In this regard, a scheme was also floated by the Corporation on 1st

February, 1999 which was in pursuance of an announcement made by

the Corporation in the press on 6th December, 1998. The Amnesty

Scheme was initially valid for a period of three months but was extended

from time to time by various public notices. The Amnesty Scheme

provided that the owner or builder of a property should submit copies of

the existing structure along with all necessary documents indicating,

inter alia, the portion proposed to be got regularized as per the relaxed

norms issued on 23rd July, 1998. It was postulated in the Amnesty

Scheme that after an application is received for availing its benefits, a

notice would be issued to the applicant advising him of the increased

floor area ratio and the charges applicable.

6. As already mentioned above, the Amnesty Scheme was extended

from time to time. On 9th February, 2000 the Appellant submitted an

application to the Corporation seeking regularization of the excess

construction made. In the application dated 9th February, 2000 the

Appellant submitted three sets of drawings indicating the portion

proposed to be got regularized as per the required norms. The Appellant

also submitted a demand draft of Rs.20,000/- towards advance payment

and stated in the letter that the balance would be paid on hearing from

the Corporation.

7. Since the Appellant did not hear anything from the Corporation

for quite some time in respect of its application, a writ petition was filed

in this Court sometime in May 2004 which led to the passing of the

impugned order.

8. The learned Single Judge has noted in the impugned order that the

Appellant was fully aware of the excess construction and was required to

pay the compounding charges at Rs.450/- per sq. meter, as postulated in

the Amnesty Scheme. Since this was not done, the application submitted

by the Appellant for regularization of the excess construction was liable

to be rejected. It was further noted that the relaxed norms which were

brought into force on 23rd July, 1998 were subsequently withdrawn on

7th August, 2000. Therefore, the learned Single Judge concluded that the

rights of the Appellant remained inchoate and did not get crystallized

and the Appellant could not claim to have any right to have its building

plans regularized in terms of the Amnesty Scheme.

9. In our opinion, the learned Single Judge erred in law in taking the

view expressed in the impugned judgment and order.

10. The fact of the matter is that the Appellant had made an

application in terms of the Amnesty Scheme. The Corporation was

under an obligation to deal with the application on merits regardless of

whether the relaxed norms were withdrawn or not. The Corporation

could not keep the application pending indefinitely without taking a

decision thereon.

11. Learned counsel for the Appellant cited M/s Shamsunder Sales

Corporation and another v. Commissioner of Income Tax, Karnataka-

III and another, 1991 Supp (2) SCC 674 wherein it has been held that

when an application is filed under the Income Tax Act under an amnesty

scheme, it has to be considered on its merits and disposed of in terms of

the scheme.

12. In so far as the present case is concerned, as we have already

noted, there is no decision taken by the Corporation on the application

made by the Appellant on 9th February, 2000.

13. Under the circumstances, we set aside the impugned order passed

by the learned Single Judge and direct the Respondents to consider the

application filed by the Appellant on 9th February, 2000 on merits and to

take a decision one way or the other in accordance with the Amnesty

Scheme that was in force as on the date of the application. A decision

be taken by the Corporation in this regard within a period of three

months from today.

14. At this stage, learned counsel for the Corporation has put in

appearance. She says that she was busy in some other Court and

requests that she may be heard in the matter. Accordingly, we have

heard her.

15. Learned counsel for the Corporation has relied upon Howrah

Municipal Corporation v. Ganges Rope Co. Ltd., (2004) 1 SCC 663. It

is contended, on the basis of the aforesaid decision, that if a building

plan is to be sanctioned, the law in force as on the date of sanction is

relevant. She sought to apply the same principle to an application made

under the Amnesty Scheme such as the one that we are concerned with.

In this context, learned counsel also relied upon Calcutta Municipal

Corporation v. Anil Rattan Banerjee, 1995 AIR SC 659 to the same

effect.

16. In our opinion, the contention of learned counsel for the

Corporation is totally misconceived.

17. The reason for this is that Amnesty Scheme such as the one that

we are concerned with is on a completely different footing from

sanctioning of building plans. Insofar as the sanctioning of building

plans is concerned, there is no doubt about the fact that the law

applicable as on the date of consideration or sanction of the plan is

crucial. However, so far as the Amnesty Scheme is concerned, the date

on which the application is made under the Amnesty Scheme is relevant.

If an application under an amnesty scheme is filed within time, it has to

be considered in terms of the scheme.

18. A right of consideration that enures to an applicant under an

amnesty scheme enures because of the scheme and not otherwise.

Therefore, if this right of consideration is sought to be taken away, then

the principles of promissory estoppel would prohibit the State from

taking any adverse steps against the applicant merely on the basis of

lapsing of the scheme.

19. Learned counsel sought to contend that effectively what is sought

to be achieved by the Appellant is to obtain a fresh sanction or a revised

sanction of the building plans, which were not in conformity with the

existing building bye-laws. This is not so. All that the Appellant is

seeking is a regularization of deviations committed by the Appellant on

the payment of the applicable fee. This is a case where the Appellant

has admittedly committed an "offence" and she is given the liberty under

the Amnesty Scheme to compound that offence by paying a charge

demanded by the Corporation and upon payment of that charge, the

"offence" of unauthorized construction is compounded and the building

is regularized in accordance with the law. This is, therefore, not a case

of a revised sanction or a fresh sanction being granted on the

compounding of an offence. The result of the compounding would be

regularization of the deviations made by the Appellant at the time of

construction.

20. It is then submitted by learned counsel for the Corporation that the

Amnesty Scheme came about as a result of some modifications in the

building bye-laws on 23rd July, 1998. It is submitted that since this

amendment stood withdrawn subsequently, the very basis of the

Amnesty Scheme had disappeared and the Appellant could not take

advantage of the Amnesty Scheme. In our opinion, this contention is

misconceived. The whole purpose of the Amnesty Scheme was to grant

an entitlement to an applicant, who has committed deviations in the

construction of a building, to set right the deviations by paying a

compounding fee and any other charge that may be levied by the

Corporation. Therefore, it is not as if the very basis of the Amnesty

Scheme has been taken away. The Amnesty Scheme remains valid till it

lapses after a period of time.

21. There is no doubt that in this case the Appellant had applied

within the time prescribed by the Amnesty Scheme but it is only when

the application was not considered by the Corporation that a writ petition

was filed. The inaction by the Corporation has created a rather piquant

situation so far as the Appellant is concerned vis-à-vis several other

persons who have taken the benefit of the Amnesty Scheme. Non-

consideration of the case of the Appellant has put her on a lower pedestal

as against other persons whose applications were considered by the

Corporation during the pendency of the Amnesty Scheme and whose

deviations were compounded. The Corporation cannot artificially place

two similar categories of persons, both of whom have made deviations in

the construction of the building, into two separate compartments - one

compartment consisting of those persons whose applications are

considered within time and another compartment consisting of those

persons whose applications are considered after the Amnesty Scheme

lapses. What is important is the date on which both these similarly

placed persons put in their applications. If they have put in their

applications during the pendency of the Amnesty Scheme, they are both

required to be treated similarly and not in a different manner. It is for

this reason that we have directed the Corporation, as mentioned above,

to consider the application of the Appellant as on the date on which it

was filed, that is, on 9th February, 2000 when the Amnesty Scheme was

very much in operation.

22. The appeal is allowed on the above terms. The impugned order

dated 6th July, 2004 passed in WP (C) No. 7859/2004 is set aside. No

costs.

23. Learned counsel for the Appellant says that an amount of Rs.1.50

lakhs is lying deposited in the Registry of this Court. In case the

application of the Appellant is accepted by the Corporation, it may apply

to the Registrar General for adjusting the amount lying deposited

towards the compounding charges, otherwise the amount be returned to

the Appellant, with interest, if any.

                                        ACTING CHIEF JUSTICE



APRIL 21, 2010                          MUKTA GUPTA, J
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